Criminal Law Notebook

Voir Dire

This page was last substantively updated or reviewed June 2021. (Rev. # 95520)

General Principles

A Voir Dire is a hearing to determine a question of law, including the admissibility of evidence.[1] It is typically held during a trial but is considered a separate hearing from the trial itself. It is known as a "trial within a trial" and designed to determine an issue separate from the trial on matters of procedure or admissibility of evidence.

Purpose

The fundamental purpose of a voir dire is to determine the admissibility of disputed evidence separate from the merits of the trial.[2] The separation from the trial permits and exploration and testing of the evidence without affecting the integrity of the trial process.[3]

  1. ↑ R v Sadikov, 2014 ONCA 72 (CanLII), 305 CCC (3d) 421, per Watt JA, at para 30 (A voir dire is to "determine the admissibility of evidence proposed for admission by a party to a criminal proceeding")
  2. ↑ R v Wanihadie, 2021 ABCA 173 (CanLII), at para 11 ("The fundamental purpose of a voir dire is to determine the admissibility of disputed evidence. This is distinct from assessing the merits of the case on consideration of all of the admissible evidence...")
    Erven v The Queen, 1978 CanLII 19 (SCC), [1979] 1 SCR 926, per Dickson J at p 931
  3. ↑ Wanihadie, supra, at para 11

Procedure

The procedure in holding a voir dire is at the discretion of the judge based on the issue and nature of the "means of proof available."[1]

Establishing Basis for Voir Dire

A party seeking a voir dire has an obligation to "demonstrate a reasonable basis for holding a voir dire". The trial judge is permitted to screen out application where "remedy cannot reasonably be granted."[2]

Failure to Follow Procedure

The failure of holding a voir dire to determine if potentially inadmissible evidence should be heard will not not always be fatal to the trial. Where the evidence is still tested and there is no prejudice to the accused to may still be valid. The court must consider whether the process was followed that served the same purpose as the voir dire.[3]

Directed Verdict

There seems to be some ability to make a motion for "non-suit or directed verdict" motion by the responding party to a voir dire application.[4]

Jury Trials

A voir dire should always be held in absence of the jury.[5] It is important that the jury not be told anything about the purpose of the voir dire or the result of the hearing.[6]

Timing of voir dire

It has been recommended that judges ruling on voir dires "should resist making final rulings until such time as they required to do so". As the trial progresses many issues may resolve themselves. However, where the "proposed evidence is likely to have a significant impact on the outcome of the trial" then it should be dealt with early. [7]

Multiple Void Dies

Each evidentiary issue should be treated as a separate voir dire and their evidence cannot be joined without consent.[8] That being said, particular pieces of evidence may raise multiple issues of admissibility and are usually treated together. Caution must be taken by the judge to ensure their ruling reflect "an informed understanding" of the governing law.[9]

  1. ↑ R v Sadikov, 2014 ONCA 72 (CanLII), 305 CCC (3d) 421, per Watt J, at para 32
  2. ↑ R v Edwardsen, 2019 BCCA 259 (CanLII), per Harris JA, at para 62 ("the issue of whether a voir dire should be held is not simply a question of standing. In these circumstances, Mr. Edwardsen was required to demonstrate a reasonable basis for holding a voir dire. The purpose of a Vukelich hearing is to screen out proposed pre-trial applications where a remedy cannot reasonably be granted. Accordingly, the judge was entitled to take into account the likelihood of a remedy being granted on the substance of the application regardless of standing.")
  3. ↑ R v DAR, 2012 NSCA 31 (CanLII), 994 APR 331, per Bryson J
  4. ↑ R v Gartland, 1981 CarswellOnt 1845, 7 WCB 110 (*no CanLII links) , at para 26 (the accused person must be afforded "every essential procedural step and safeguard available to him on his trial on the merits of the substantive offence, in so far as it can be applicable...") cited also in R v BT, 2012 NSPC 59 (CanLII), 1010 APR 39, per Derrick J
  5. ↑ R v Viszlai, 2012 BCCA 442 (CanLII), 293 CCC (3d) 127, per Frankel J, at paras 69 to 72
  6. ↑ Viszlai, ibid.
  7. ↑ R v Harris, 1997 CanLII 6317 (ON CA), 118 CCC (3d) 498, per Moldaver JA, at para 38
  8. ↑ Sadikov, supra, at para 31
  9. ↑ Sadikov, supra, at para 33

Types of Voir Dires

Applying Rules Evidence

The judge must determine whether the "conditions precedent" to the admission of evidence have been met.[1]

  1. ↑ R v Sadikov, 2014 ONCA 72 (CanLII), 305 CCC (3d) 421, per Watt JA, at para 30

Constitutional Challenges to the Admissibility of Evidence

The process of challenging the constitutionality of the admissibility of evidence requires first an inquiry into the constitutionality of the state's conduct and then second, should a finding of unconstitutionality is found, an inquiry into the "admissibility of the evidence obtained by the infringement."[1]

Provincial Rules of Court may also provide guidance on procedure.[2]

  1. ↑ R v Sadikov, 2014 ONCA 72 (CanLII), 305 CCC (3d) 421, per Watt JA, at para 35
  2. ↑ e.g. Ontario: Rule 31 of the Criminal Proceedings Rules

Challenging Warrant Validity

See also: Standard of Review of a Judicial Authorization

Procedurally, a voir dire on the for the validity of a warrant should proceed as follows:[1]

(a) The trial judge should determine whether a voir dire is necessary and, if so, whether the calling of evidence should be permitted;
(b) If the judge accedes to the request to hold a voir dire and the accused wishes to cross-examine the informant, then the accused must obtain leave of the judge to do so. If the judge grants leave, then he or she can limit the scope of the cross-examination;
(c) Cross-examination should proceed to the extent permitted by the order granting leave;
(d) Re-examination, if any, should follow the cross-examination; and
(e) The trial judge should determine whether the record as amplified on the review could support the issuance of the warrant.
  1. ↑ R v Wilson, 2011 BCCA 252 (CanLII), 272 CCC (3d) 269, per Frankel JA, at para 69

Waiver

A voir dire cannot be waived by mere silence of counsel.[1]

Unequivocal admission of the issue by an opposing party should generally be sufficient to forgo a voir dire.[2] The judge should be be satisfied that counsel understood the matter and has made an informed decision.[3]

  1. ↑ Powell v R, 1976 CanLII 155 (SCC), [1977] 1 SCR 362, per De Grandpre J
    Park v R, 1981 CanLII 56 (SCC), [1981] 2 SCR 64, per Dickson J
  2. ↑ e.g. R v Dietrich, 1970 CanLII 377 (ON CA), 1 CCC (2d) 49, per Gale CJ
  3. ↑ Park, supra, at p. 73 (SCR)

Voir Dire Evidence

Charter applications require a factual record. They cannot be argued in a vacuum.[1]

There is no strict requirement in law that voir dires must be conducted on viva voce evidence.[2] The court may, as a matter of efficiency and judicial economy, decide the issues on the basis of counsel summation of evidence.[3]

Affidavits that are based on hearsay should be given little weight and generally should not be considered admissible as evidence on a Charter application.[4]

Since evidence in a voir dire is separate and apart from evidence in the trial proper, each exhibit should be marked to be distinguished from the trial such as "V.D. Exhibit 1, etc".[5]

The accused can be cross-examined at trial on evidence that they gave during a voir dire.[6] During the voir dire, he may be questioned on the truthfulness of a previous statement.[7]

  1. ↑ See MacKay v Manitoba, 1989 CanLII 26 (SCC), [1989] 2 SCR 357, per Cory J
    Danson v Ontario, 1990 CanLII 93 (SCC), [1990] 2 SCR 1086, per Sopinka J
  2. ↑ R v Kematch, 2010 MBCA 18 (CanLII), 252 CCC (3d) 349, per Monnin JA
    R v Garnier, 2017 NSSC 239 (CanLII), per Arnold J, at para 12
  3. ↑ Garnier, ibid., at para 13
    United States of America v Anderson, 2007 ONCA 84 (CanLII), 218 CCC (3d) 225, per Doherty JA, at para 37
    R v S(DG), 2012 MBQB 19 (CanLII), 274 Man R (2d) 313, per Spivak J, at paras 6 to 7, aff’d 2013 MBCA 69 (CanLII), per Chartier JA
  4. ↑ R v Darrach, 2000 SCC 46 (CanLII), [2000] 2 SCR 443, per Gonthier J
    R v Harris, 1994 CanLII 2986 (ON CA), 93 CCC (3d) 478, per curiam
    R v Herter, 2009 ONCJ 378 (CanLII), per Nicholas J, at para 1
  5. ↑ R v Grey, 2013 BCCA 232 (CanLII), 338 BCAC 121, per Frankel JA, at para 42
  6. ↑ Darrach, supra
  7. ↑ R v DeClercq, 1968 CanLII 24 (SCC), [1968] SCR 902, per Martland J

Admissibility of Voir Dire Evidence Within the Trial

A voir dire is considered a separate hearing and so evidence admitted in the voir dire is not automatically evidence in the trial proper.[1]

The evidence heard in a voir dire can become evidence of the trial proper where it has been found admissible in the voir dire and both parties consent (known as a "blended" voir dire).[2]

Consent for a blended voir dire can be applied only to some of the evidence to the exclusion of the rest of the evidence heard.[3]

However, where there has been evidence accepted at the voir dire that would otherwise be inadmissible at trial, and which was consented as applicable to the trial, the validity of the verdict may be in question.[4]

The choice of whether to consent to a blended voir dire will have an effect on the manner in which evidence is presented. A non-blended voir dire may require the defence to lead evidence to establish the violation. A blended voir dire will require the evidence to be lead by the Crown.[5]

  1. ↑ R v Gauthier, 1975 CanLII 193 (SCC), [1977] 1 SCR 441, per Pigeon J at 452
    R v Viszlai, 2012 BCCA 442 (CanLII), 293 CCC (3d) 127, per Frankel JA, at para 68
    R v Erven, 1978 CanLII 19 (SCC), [1979] 1 SCR 926, per Dickson J, at p. 932
    R v Darrach, 2000 SCC 46 (CanLII), [2000] 2 SCR 443, per Gonthier J, at para 66
    R v Dela Cruz, 2007 MBCA 55 (CanLII), 220 CCC (3d) 272, per Freedman JA, at para 24
    Gauthier, supra, at p. 454
    R v Sadikov, 2014 ONCA 72 (CanLII), 305 CCC (3d) 421, per Watt JA, at para 30
    R v Frederickson, 2018 BCCA 2 (CanLII), per Fisher JA, at para 38 ("each admissibility voir dire is a separate inquiry, and without express incorporation, the evidence adduced on the voir dire is not available for use at trial or in a later voir dire")
  2. ↑ R v Jir, 2010 BCCA 497 (CanLII), 264 CCC (3d) 64, per Frankel JA, at para 10
    R v Ballendine, 2011 BCCA 221 (CanLII), 271 CCC (3d) 418, per Frankel J, at para 84
    Dela Cruz, supra, at para 26
  3. ↑ e.g. R v Smith, 2016 BCSC 1725 (CanLII), per Kent J, at paras 45 to 47
  4. ↑ R v Wilson, 2011 BCCA 252 (CanLII), 272 CCC (3d) 269, per Frankel JA, at para 71
  5. ↑ See Charter Applications for details on burden

See Also

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